Testimony in Opposition to AB 291-Second Amendment Eradication Act

The below is the testimony I submitted to the Assembly and Senate Judiciary Commitees. Please read down for a history of preemption and a copy of the legislative history of the original bill from 1989.

​I am in opposition to AB 291. This bill should be unanimously voted down. It is nothing more than a brazen attempt, in a manner rigged to the favor of hoplopathic legislators and their campaign donors, to confiscate property of Nevadans and infringe upon their right to keep and bear arms. Nothing contained in this bill would make Nevada a safer place and nothing in it would have prevented the October 1, 2017, Mandalay Bay massacre that the sponsor is using as a emotional ploy to secure passage. This bill makes a mockery of the dead and survivors, particularly those who do not share the convictions of the sponsor, by taking a tragedy and using it for wholly unrelated political gains.
 
This bill will eliminate the Nevada “Gun Owners’ Bill of Rights” (state firearm preemption), it will confiscate private property without due compensation, and it will subject hundreds of thousands of law-abiding gun owners to traps set by anti-gun county commissions and city and town councils.
 
I would like to address the separate issues brought into this omnibus bill
 
Bump fire stocks and rate increasing devices
 

• Bump fire stocks and “rate increasing devices” that simulate machine guns are useful tools for marksmanship, a necessary component of a citizen militia in keeping with the Second Amendment, where true machine guns are far too expensive for the average person to afford.
• The proposed banning of  “rate increasing device” is so vague as to violate due process; what is the baseline rate of fire of a semi-automatic firearm? Due process is a concern here.
• Making bump fire stocks and “rate increasing devices” prohibited contraband constitutes an uncompensated taking in violation of the 5th Amendment to the United States Constitution.
• This proposed ban is null and void because it infringes upon the right to keep and bear arms as protected by the Second Amendment of the United States Constitution and the rights enumerated by Section 11, Article 1, of the Nevada Constitution.
• Bump fire can easily be produced by a semi-skilled shooter using nothing more than their fingers (or belt loops—does the Legislature intend to ban pants?).
• Steven Paddock had the financial resources to purchase a true machine gun and a clean background to pass the background check mandated by the National Firearms Act. The cost of his bump fire stocked AR-15 style rifles, approximately 20, could have paid for one fully automatic M16 or another true machine gun. Instead, we are lucky that he used inaccurate, unreliable bump fire stocks. The concentrated fire of a true machine gun, instead of the jerky fire of bump fire stocks, would have allowed him to kill many, many more victims that night. Perhaps the sponsor of this bill owes her life to bump fire stocks and Paddock's inaccurate shooting.

 
Carrying while intoxicated
 
Nevada only lowered its DUI threshold from .10 to .08 under threats from Washington to remove transportation funding. What is the impetus behind lowering the BAC level while carrying? Has there been a rash of people at .08 or .09 BAC causing negligent discharges or other hazardous situations with a gun? Is there any objective reason for making this necessary? Any scientific evidence to show that .02 makes a marked difference in impairment that paragraph (b) can’t address?
 
Concealed carry in public buildings
 
The proposed amendments to NRS 202.3673 are unnecessary and unfair. It:

• Endorses recent abuses of state law by local municipalities and agencies;
• Ignores the expressed will of the people through years of legislation;
• Does nothing to ensure safety as criminals and murderers will simply ignore the law;
• Disarming law-abiding armed citizens in locations without security screening for all and a credible, armed security force capable of immediate response to end an attack is unconscionable;
• The Nevada State Constitution clearly protects the “right to keep and bear arms for security and defense,” which this proposed change would violate; and
• Licensed concealed carriers are the last people that anyone should be worried about. Studies have shown that concealed carriers are more law abiding than the general public and even police officers.

 
Current law only prohibits concealed carry at buildings that are posted with “no guns” signs at each public entrance or metal detectors. Proposed Subsection 2 as written would allow ordinances to ban concealed carry at public buildings but not require signage to warn visitors. An out-of-towner or unaware person could be in violation and never know. The changes don’t even require the ordinance to require signage and create an unjust trap for responsibly armed citizens.
 
Subsections 2, 3 and 4 all apply separately; so Subsection 4’s signage requirement would not necessarily apply to Subsection 2. In the hearings for AB 166 in 1999, airports were giving their own subsection so that the signage requirement would not apply specifically because of concerns that the size, the number of entrances, and the crowds would make it difficult to post signs that a concealed carrier could see. The proposed changes, by granting discretionary authority, only highlight the fact that local authorities post signage prohibiting concealed carry without any authority to do so.
 
State Preemption of Firearm Laws
 
Nevada has prohibited local regulations on firearms, except unsafe discharge, since 1989. Preemption is not new. Minor changes were made up until 2015, when a host of grandfathered laws including Clark County’s handgun registration program, “blue cards,” were eliminated by the legislature. Claims made in the media and are likely to be made by politicians in support of this bill have implied that the law is new and the work of the Republican majority in 2015. Such aspersions are ironic in the face of this session’s Democratic supermajority ramming anti-gun bills through using deceitful tactics such as joint committee sessions, Monday morning meetings with short public notice, and advance warning to anti-gun support groups.
 
With the repeal of state prohibition of firearm laws and with the changes in NRS 202.3673 proposed here, Nevadans run the risk of unintentionally and unknowingly violating local gun laws. Preemption of local gun laws began solely to eradicate the danger of a patchwork of varying laws. Getting rid of those laws bring back that risk and more. Repealing preemption is nothing more than allowing underhanded local authorities to lay traps for otherwise law abiding gun owners.
 
Repealing firearm preemption would be a direct signal to the counties who oppose gun control to continue passing ordinances and resolutions in opposition to state laws that infringe on the right to keep and bear arms. Counties could very well pass ordinances nullifying state laws that would require costly litigation. One wonders if the repeal of state preemption was spurred on as revenge of urban legislators to spite rural counties that oppose state gun control.
 
Disparate firearm laws have created many problems. To highlight a few:
 

• North Las Vegas had two ordinances regarding carrying firearms that were used for years to harass and detain African-Americans. Though no one will come out and say it, these laws existed to disarm blacks and enable police to arrest them.
• After a mentally ill person openly carried in Reno, the police chief asked the city council to ban loaded open carry in the city. At the time, concealed carry permits were may issue and petitions rarely granted. Over the course of two council meetings, Reno removed the last way its citizens could legally carry a gun for self-protection.
• Non-compliance is also a concern. Boulder, Colorado, under a local ordinance required registration of “assault weapons.” Based on national ownership and purchase figures, only 85 weapons out of a potential minimum 4,500 weapons were registered.
• Clark County’s “blue card” handgun registration scheme was begun as a way to keep tabs on criminals and mafia members who were “heeled” in Las Vegas’ heyday. It morphed into an expensive and relatively worthless program. With its repeal, Nevadans and Clark County residents have been very hostile to the idea of any kind of gun registration scheme, especially in light of the disingenuous universal background checks.

 
What is the need for eliminating state firearm preemption? Could it be a partisan agenda rather than any need? What has been articulated in the media is that preemption laws prohibited the Clark County Commission from enacting a knee-jerk ban of bump fire stocks and other items after the October 1, 2017, Mandalay Bay shootings. Gov. Sisolak (then a commissioner) and others were denied their opportunity to virtue signal.
 
Removing the “blue card” scheme and clearing the books of old anti-gun ordinances was a boon to Nevada and praised by the firearms community. Many of these local ordinances had not been enforced in years or decades. Since 1989, the trend in Nevada has been to restrict local control of gun laws.
 
This bill is about allowing urban, leftist-led cities and counties to run roughshod over gun owners. Leftists in local government have chafed at being held to the law by their constituents. This was fought tooth-and-nail, including Clark County obtaining a favorable decision to support grandfathered laws from then Attorney General Cortez-Masto. Activists on both sides of the debate are well-aware of the lengths that unscrupulous officials will go to keep the public disarmed.
 
We have heard that the “needs” of urban areas are different than urban areas, but that is a lie. Constitutional and natural rights apply equally. Such claims that an urban area needs different laws is nothing more than an excuse for leftist urban municipalities to force their will in regards to gun control upon their population. As with universal background checks, the urban areas of the state, which dominate the legislature, have totally ignored 49% of the state and every rural county. Will it be any different here?
 
As the escapades with the Las Vegas Clark County Library District’s illegal ban of open carry shows, weak or no preemption allows infringing agencies and municipalities to be unaccountable to the public. Should the public hold the government to the law, all a well-connected politician or bureaucrat (or state supreme court justices) has to do is work their network to gain a favorable court decision or simply change the law. Such behavior is not only unethical; it is un American and tyrannical.
 
Senseless and reactionary ordinances that infringe on the right to keep and bear arms face costly challenges in court; expenses taxpayers will bear. Though gun-rights will ultimately prevail, only lawyers will benefit and innocent, disarmed Americans may very well be hurt or killed.
 
Conclusion
 
Many commentators, not just those in conservative or the gun rights community, have predicted that if the US Supreme Courts finds in favor of gun rights in the upcoming case New York State Rifle & Pistol Association v. City of New York, the result will be that the judicial review standard of strict scrutiny will apply to the Second Amendment. Approximately 70% of laws appealed under strict scrutiny are overturned. Any state or local gun law overturned under this standard, should the decision in the above case go as predicted, would be forever nullified, making the law/ordinance waste of time and money.
 
No on AB 291.

History of Preemption in Nevada

​State preemption of firearm laws are nothing new. They are a reaction to the city of Morton Grove, Illinois, banning of all handguns by ordinance in 1981. In the 1980s, state began adopting firearm preemption laws to place control of firearm regulation with the legislature. Nevada was one such adopter. Any claim or inference that preemption dates from 2015 is a lie; in 2015, Nevada cleaned up may left-over bad gun laws that originally should have ben invalidated in 1989.
 
Nevada’s preemption laws began in 1989 with Assemblyman Thompson’s AB 147, dubbed by some as the “Firearms Owners’ Bill of Rights.” Thompson had asked for a Bill Draft Request in 1987 at the behest of a constituent. The constituent told him:
 
“Look what’s going on here. Clark County has one set of rules about buying and registering guns, Henderson has another one. Eventually there are going to be 100 different laws in the state, every city and every county is going to have their own law, with their own little quirks […] and whether or not they are in violation of one or another law every time they cross a county or city border.”
 
State preemption originated primarily because of variations in Clark County handgun registration ordinances, which it sought to do away with entirely. A second reason was to promote uniform firearm regulation across the state. Much concern was expressed that local authorities were able to have a variety of local ordinances that visitors and travelers were unaware of. In the time before virtually everyone used World Wide Web, only through meticulous research at the library or city hall/county seat could someone be aware of local laws.
 
At this time, Reno prohibited loaded open carry, North Las Vegas had two ordinances against being armed in public, and it was illegal in Hawthorne to carry a weapon. Concealed firearm permits were “may issue” and not routinely issued until 1995 when Nevada became “shall issue.”
 
Mr. Bruce, who testified at the first hearing for AB 147, said that the argument in favor of local regulation of firearms was an emotional one.
 
In 1989, Undersheriff Cooper said that “Las Vegas was becoming a major city with major city problems, therefore, Las Vegas could not be compared to the remainder of the state." Sheriff Moran said: "[...] I think Las Vegas is a very unique city and requires gun regulations that would be impractical in rural areas. [...] Las Vegas is unlike any other city in the world. [...] but there comes a time when even I have to interpret the Constitution as I see fit [...] [emphasis added]."
 
Oddly, despite this official pronouncement, made at the outset of the urban vs. rural struggle over gun rights, that Clark County regulations should not apply to the whole state regarding handgun sales—this is exactly what Nevada did 30 years later with 2019’s SB 143.
 
In 1989, despite the major aim of the bill being made to dismiss Clark County’s “blue card” handgun registration scheme, intense pressure from LVMPD saw an amendment that allowed the law to stay in. This was done by grandfathering laws in existence prior to June 13, 1989. The sole intent of this grandfather clause, as was clearly expressed by legislators, was that it would apply only to the “blue card” restrictions. Despite the legislative intent, a host of other outdated local regulations stayed on the books until repealed either one by one or invalidated in 2015 by SB 175 and SB 240.
 
The preemption laws were amended in 2007 to fix a loophole that technically made visitors to Las Vegas and Clark County's new Shooting Complex (and other travelers) in violation of the law. A side note is that if Clark County Parks (the complex’s operator) stuck with the original name of the “Shooting Park,” under county code, it would be illegal to possess a firearm in the shooting park! In order to keep the grandfathered park regulation banning firearms in county parks, the county commission could not pass an ordinance exempting firearms in the shooting park. Thus the “Shooting Park” became a shooting complex.
 
In 2007, under the new language where the only grandfathered regulations are ones “adopted before June 13, 1989, [pertaining to] the registration of a firearm capable of being concealed.” Plainly stated the legislature was invalidating all ordinances not involving handgun registration (and unsafe discharge). Ordinances dealing with all but handgun registration were null and void, regardless of when adopted.
 
By 2015, the vast majority of county law enforcement agencies and officers stopped enforcing all local firearm regulations, save for handgun registration. The Clark County Park Police maintained that the park rule against guns in county parks (concealed firearm permit or not) was legal and continued to harass those legally carrying firearms. The county was so adamant about enforcing the ordinance, they managed to get the Democrat Attorney General to write an opinion justifying Clark County's behavior and continual violation of civil rights, even though Attorney General Cortez-Masto had to use some pretty abstruse logic to support her preposterous reasoning.
 
Cortez-Masto concluded that because the original regulation (19.04.060 CCMC) was adopted before the 1989 preemption bill, the original (since altered) language of the 1989 bill allowed them to continue to enforce this law because the 2007 revision to the preemption statute didn’t explicitly say that municipal regulations to the contrary were henceforth illegal. This was a deliberate deferral to the original bill that was superseded in 2007.
 
In 2015, SB 175 and SB 240 were passed to remove Clark County handgun registration and unequivocally remove invalidated and supposedly grandfathered ordinances off the book. Except for a few examples, such conflicting ordinances have been repealed as required by statute. None of these changes have made Nevada less safe. 

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